How Congress Can Defend DOMA

On February 23, Attorney General Eric Holder announced in a letter to House Speaker John Boehner that President Obama had instructed him to no longer defend the constitutionality of the Defense of Marriage Act (DOMA), but that he would notify the courts of DOJ’s “interest in providing Congress a full and fair opportunity to participate in the litigation,” i.e., to defend DOMA. The president’s decision seems driven by politics and violates his law enforcement duty, calling into question the integrity of our justice system. It contravenes long-standing Justice Department policy to defend Acts of Congress unless no reasonable argument can be made in their defense or they infringe on core presidential constitutional authority, neither of which is the case with DOMA. Congress must now make sure that DOMA is adequately defended in court.

To that end, there are several federal statutes that authorize Congress to intervene and take over the defense of a statute when the Justice Department goes AWOL and such intervention has been upheld by the Supreme Court. Under 2 U.S.C. § 288e(a), the Senate has the right to intervene in litigation “in which the powers and responsibilities of Congress under the Constitution are placed at issue.” There is obviously no question that the constitutional power of Congress to pass DOMA is at issue in the litigation that has been filed against it. In order for the Senate’s Legal Counsel to appear on behalf of the Senate “or in the name of an officer, committee, subcommittee, or chairman of a committee or subcommittee,” the Senate must adopt a resolution authorizing intervention (2 U.S.C. § 288b(c)). This statute does not prevent members of the Senate from attempting to intervene or file amicus briefs in their personal capacities.

Similarly, under 2 U.S.C. § 130f(a) the General Counsel of the House of Representatives can “enter an appearance in any proceeding before any court of the United States” without compliance with admission requirements (except for the Supreme Court). This does not mean that the House’s General Counsel cannot appear before the Supreme Court; simply that in that court, he must comply with its admission requirements. Section 130f(b) requires the Attorney General to “notify the General Counsel” as required by 28 U.S.C. § 530D, which mandates that the Attorney General submit a report to Congress if he determines that he intends to refrain “from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute.”

The House of Representatives can also hire private counsel because the term “General Counsel of the House of Representatives” is defined to include “any other person authorized and directed in accordance with the Rules of the House of Representatives to provide legal assistance and representation to the House” (2 USC § 130f(c)(3)). Under the Rules of the House of Representatives (Rule 2, Clause 8), “[t]he Office of General Counsel shall function pursuant to the direction of the Speaker.” The same Rule says that the Speaker shall “consult” with a Bipartisan Legal Advisory Group, “which shall include the majority and minority leaderships.” But that Group has no veto authority over the Speaker’s decisions, according to the plain text of the Rule. So the General Counsel (or private counsel) can be authorized by the Speaker alone to defend the constitutionality of DOMA. There is no federal statute, as in the Senate, requiring a resolution passed by the House.

One of the cases where congressional intervention occurred is INS v. Chadha, 462 U.S. 919 (1983). Both the House and Senate intervened after the Justice Department joined with the plaintiffs to argue that a provision of federal immigration law was unconstitutional. The provision authorized either house of Congress, by resolution, to veto the decision of the Attorney General to allow a deportable alien to remain in the United States. It was an attempt to micromanage the President’s prerogative to enforce the federal immigration law on the books.

The Supreme Court ultimately found this provision unconstitutional. The disagreement with the Attorney General over the deportation of the plaintiff involved a determination of policy that Congress could implement in only one way: “bicameral passage followed by presentment to the President” (462 U.S. at 954-955). However, relevant to the issue of the ability of Congress to defend DOMA, the Court held that both houses had standing to intervene in the Chadha case because the Court had “long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional” (462 U.S. at 940).

If the House of Representatives wants to intervene and defend DOMA now that DOJ has said it will not defend the law, the Speaker can authorize intervention or, if he chooses, he could submit the question for a House resolution vote. The House would also have to consider whether such a resolution would set a precedent calling for a vote when that is not required under the Rules of the House. For the Senate to intervene, a resolution would have to be approved authorizing such action.

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform—as a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative. Read his research.

Join The Discussion

As much as I support the idea of DOMA – I do not feel this is a federal issue. How we can say Abortion is not a federal issue and say something like marriage is showing conflict in basic principles.

What I fear about federalizing marriage is what if a future president worse than Obama has total power over the definitions, we can just as easily lose DOMA as we could in gaining it. I think we should leave it to the church.

Marriage is a religious institution. We have a first amendment that forbids congress from making legislation that impedes on a religious institution. States may or may not have such a restriction, but the feds do.

This is a pointless venture for congress – marriage is already protected. It is a shame we on the right do not have the same fortitude to use the courts to protect what the constitution already protects.

We need congress to focus like a laser on significantly reducing spending and strategizing how to reduce the national debt. Like it or not, we are a debtor nation – we are not much different than any other third world nation. This is what the feds have done to us.

Reducing the debt has become the federal government's primary job for a few decades to come. The rest of us need to get back to business. The biggest thing that splits up couples is money. We need to shore up the economy to shore up marriage.

You wrote "It contravenes long-standing Justice Department policy to defend Acts of Congress unless no reasonable argument can be made in their defense or they infringe on core presidential constitutional authority, neither of which is the case with DOMA. Congress must now make sure that DOMA is adequately defended in court."

But you failed to mention that the administration has been looking into this matter for many, many months and has decided that it is unconstitutional and would never withstand the higher-scrutiny test that the Supreme Court will put on Section 3 of the DoMA in the United States Code.

The administration had absolutely no reasonable argument to defend this law. The administration is obliged to enforce the laws, but can ultimately decide if it wants to defend a law in court or now. The law will go before the Supreme Court for a final decision, and will be further enforced until an official decision is made.

It is very clear to me that the President of the USA has technically not broken any laws or his oath. I think the people of the United States need to start analysing their own law and reading up on things. Many people are very wrong in what they write and should be careful before they speak. Even many of the Repulicans in Congress are saying he broke his oath which reads '"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The law is, technically, unconstitutional–which ironically supports his decision in not defending it in court because it IS unconstitutional. I wish someone could convince me why they believe this law is constitutional….Until now I have not recieved any good answers…

I agree it shouldn't be a feds issue and left to the church. But like many protected areas, the government is threatening or not protecting at all, as they've become insubordinate to the principles of this country, under Obama.

[…] he would make a decision on whether the House would defend DOMA this week. The Heritage Foundation says that Boehner can authorize intervention himself or submit the question for a House resolution […]

[…] if the Obama administration Justice Department won’t do so, the Heritage Foundation’s Hans von Spakovsky explains. Basically, the Senate can vote to have its legal counsel appear on behalf of the chamber […]

The Obama Administration is getting a lot of criticism from social conservatives for ending its defense of the Defense of Marriage Act (DOMA). However, if part of President Obama’s job is to “preserve, protect, and defend the Constitution, he made the right call.

There was never any point in defending something as clearly unconstitutional as DOMA. This law sets up differing legal standards for Gay and Straight couples, thus violating the 14th Amendment. Because of DOMA, even Gay couples who are legally married in Iowa or Massachusetts are unrecognized by the federal government for the purposes of tax law and Social Security.

Also, unlike married Straight couples, married Gay couples become "UN-married" if they move across state lines, so DOMA violates the "Full Faith & Credit" clause.

By its own actions, the federal government has made marriage a federal issue. Most of the legal benefits of marriage are bestowed by the federal government. You can argue about religion and parenthood until the cows come home, and it will not negate the fact that there is simply no constitutional justification for denying law-abiding, taxpaying Gay couples the same legal benefits that Straight couples have always taken for granted.

This is no longer specifically about DOMA – the Defense of Marriage Act – It is about who defends a Federal law when the US President/US Attorney General does not. There's a big difference.

Most comments are about whether simple people like me believe or do not believe DOMA is constitutional or the reverse. That is absolutely irrelevant. We don't decide what is constitutional, and neither does the US President, who is an expert at Constitutional Law, since he taught that in law school.

To read exactly what Pres. Obama claims about "higher-scrutiny" per DOMA, you can go to: metroweekly.com/poliglot/LETTER_-_BOEHNER dot pdf (you have to reconstruct the link).

Here's Obama's abuse of power. He tries to set the "standard of review" for DOMA:

"In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of 5 DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law."

So, he's deciding what's unconstitutional and telling the district courts how to go about judging the cases. Note he is not just leaving it to Congress to defend DOMA.

Ironcially there is a legitmate conservative argument for repeal of section 3 of DOMA – states rights. Even more ironically keeping the issue in suspense means that same sex couples in the aggregate pay less income tax

I respectfully submit to those of you who claim that marriage is a religious institution, from either side of the argument:

What about all of the marriages performed in all 50 states OUTSIDE of religious trappings? For example, marriages performed by a Justice of the Peace, a judge in a courthouse, or even the many, many marriages performed for virtual strangers in Las Vegas? Where is the religious aspect of these marriages, outside of the absolute basic component of "man and woman"?

The real answer is – there is none. Like it or not, marriage in this country and all 50 states is a Civil matter. Religious participation in the marriage ceremony is not required. In fact, a religious figure who performs a marriage is doing so as a representative of the State to make that marriage legal in the eyes of the State.

This, ultimately, is the real argument behind the drive to legalize same sex marriage. It is not a religious issue, regardless of what some might have you believe. Churches are always free to decide who they do or don't perform wedding ceremonies for. The real issue is the fact that marriage in this country is a civil, legal matter and should be available to everyone, without one person's religious beliefs getting in the way of another's.

Just imagine if Catholic, Mormon or Muslim religious beliefs controlled our marriage laws exclusively, determining who you could get married to? Whether you could get married after a divorce, or even get divorced at all? If you could get married to someone of a different faith? Would YOU be happy with such restrictions on such a personal decision in your life?

So why should the conservative Christian beliefs regarding marriage determine the secular, civil marriage laws in this country, regardless of whether a majority of people believe them or not? Do we not have a 1st Amendment guaranteeing Freedom of Religion? A 14th Amendment guaranteeing Equal Protection?

Bob in the above response is totally correct. In most states, the clergy is almost automatically authorised by the clerk of the court or clerk of records to perform a marrage. Records much be returned to the appropriate athorities for recording. Marriage may obtain further significance to the parties within a religious setting, but no church is required to perform a wedding if they do not wish to for any reason. The state may not require a church to perform a same sex marriage or to even recognize one if it exist. The states duties are different and it in the states interest to allow same sex marriage as a civil right and to encourage long term relationships.

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